Remember last summer when the Connecticut Supreme Court in State v. Santiago abolished the death penalty on the ground that it was cruel and unusual in violation of Connecticut’s state constitution?
When I covered the court’s decision then, I wrote that some people (myself included) already agreed with the court that the death penalty should be struck down as unconstitutional, period. But I also noted that many — probably more — people would likely view the court’s decision as result-driven and as something of an analytical stretch. All in all, I wondered whether the decision might be a sign that the end of the death penalty is near (just as the Massachusetts Supreme Judicial Court’s Goodridge decision was a sign that same-sex marriage would soon become the law of the land across the United States).
Of course, for Santiago to toll the death penalty’s end, it would help if the decision remained in force.
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Happily, it looks like that’ll be the case.
Reports the Connecticut Mirror:
The state Supreme Court declined Thursday to reverse its 2015 decision eliminating the last vestige of capital punishment in Connecticut – the sentences facing 11 men on death row when the legislature repealed the death penalty for future crimes.
This would hardly be big news — how often does a court of last resort reverse itself mere months after issuing a decision? — but for two things. First, Santiago was a 4-3 decision that drew some sharp dissents accusing the majority of significant overreaching. For example, Justice Carmen Espinosa wrote that:
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The majority’s decision to exceed this court’s limited power appears to be designed to eliminate capital punishment in this state. Rather than faithfully applying a true contemporary standards analysis, the majority applies only the appearance of such an analysis, selecting for consideration only those aspects of each factor that support its conclusion.
And second, one of the four justices in the Santiago majority retired and a new justice joined the court. One had to wonder: would these factors combine to result in a rare reversal of course?
But of course, the answer is no. Instead, given an opportunity to reverse Santiago in State v. Peeler, the court issued a two-paragraph per curiam decision resting entirely on Santiago. And this time only two justices dissented. Chief Justice Chase Rogers explained her switch from dissent to majority in a concurring opinion:
Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason—my respect for the rule of law. To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court’s integrity and the rule of law in the state of Connecticut.
That was the right call, to be sure. Not that Justice Espinosa (of the strongly worded Santiago dissent) agreed with it. She wrote another dissent, this time calling the per curiam opinion “disdainful,” “terse,” and “dismissive,” and saying that the principle of stare decisis is “unjustified and irrelevant when the prior precedent at issue is clearly wrong.”
But, no surprise, at least some of the justices in the Peeler majority disagreed that Santiago was clearly wrong. Justice Palmer wrote a concurrence, joined by two colleagues, that reiterated the court’s substantive reasoning. The Connecticut Mirror says this concurrence “defended the Santiago decision as a logical progression in society’s turn away from capital punishment,” but I view it less as defensive and more as a recitation of facts and analysis that are even stronger now than they were last summer. Indeed, after noting that “persistent, long-term declines in capital punishment are just what they appear to be–evidence that contemporary standards of decency have evolved away from execution as a necessary and acceptable form of punishment,” the Palmer concurrence points out that “statistics for 2015 continue to reflect a substantial decline in the imposition and implementation of the death penalty nationwide.” In other words, if the death penalty was cruel and unusual in 2015, it’s cruel and even more unusual in 2016.
So, now that any uncertainty in Connecticut has been put to bed, the only remaining question is: which state court of last resort will be the first to follow the Connecticut Supreme Court’s lead? If the past is any guide, we’ll know the answer soon enough.
Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].